Ivan Kopri: Good administration and good governance as the key elements of the European Administrative Space

PROFESSOR DR. SC. IVAN KOPRI

Full professor of Administrative Science
Faculty of Law, University of Zagreb
Zagreb, Trg m. Tita 14
E-mail: ikopric@pravo.hr

GOOD ADMINISTRATION AND GOOD GOVERNANCE AS THE KEY

ELEMENTS OF THE EUROPEAN ADMINISTRATIVE SPACE

I.

Introduction

The paper analyses the concepts of good administration and good governance on the
example of the functioning of the European Ombudsman. The main achievements of the
Ombudsman are concentrated around the preparation and application of the Code of
Good Administrative Behaviour and stipulation of the right to good administration and
several additional rights of citizens within the European Charter of Fundamental Rights.
Good administration and good governance are the key elements of the European
Administrative Space. All three concepts have their normative and empirical sides and
are used in literature interchangeably.
However, European Administrative Space has recently become the dominant concept in
administrative theory and doctrine, for analysis of the phenomenon of administrative
convergence in Europe, thus subsuming both good administration and good governance
as narrower concepts with somewhat different focus. Thus, good administration has
predominantly normative connotations, referring mostly to the respective rights, their
elements and way of further normative development. Good governance has got an
increasingly pivotal role in doctrinal discussions about the new type of relationships
between government, citizens and society as a whole, and is more oriented to policy
making than to policy implementation.
In such a vein, good administration has been attracting legal meanings, good
governance has had doctrinal connotations, and the European Administrative Space has
got theoretical significance. However, dissection of these notions is still a rather complex
and sensitive task which this paper can only initiate.

II.

European Administrative Space

2
European Administrative Space (EAS) is based on the idea of administrative
harmonization and convergence of traditional models of public administration1 and
traditional administrative solutions. It is a space with approximately equal level and
quality of public services for all European citizens and other people. The EAS is
grounded on and comprises a set of values and social and citizens expectations,
governance principles and standards of public administration organisation and
functioning defined by law, whose application is supported by the appropriate
procedures and accountability mechanisms. As a theoretical notion, it has several
different meanings: geographic, normative, cultural, political, sociological and
comparative-administrative (more in: Kopri et al., 2012: 132-135).
The EAS is created and driven by EU institutions, the Council of Europe, the OECDSigma, and other European players. It is facilitated by civil servants learning in the
process of sharing best practices. The EAS is not based only on formal regulations: it is
fuelled by the expectations of European citizens, civil society, economic and other nongovernmental actors (see also Ulusoy, 2009: 364-367). Those expectations give
propellant to the process of Europeanization and make the EAS a viable and live
concept.
The convergence seems to be slow, but constant. There are continuous efforts of the
Council of Europe, the EU and the OECD-Sigma, to create, systematize, codify,
promote, and impose (if possible) common European administrative principles and
standards. These principles and standards are undergoing the process of sedimentation
through everyday administrative functioning and practice. There are many fields of
harmonization and convergence, with administrative procedures and administrative
justice being some of them.
Convergence and ever increasing similarities did not use to be the result of imposing
harmonisation policy but of almost inevitable mutual adjustments among the EU
member states. However, after the Lisbon Treaty and its Charter of Fundamental Rights
this is not completely true: the right to good administration represents the main
instrument of legally induced harmonization in the field.
Although it can be said that administrative convergence is a restructuring and
adjustment rather than a homogenizing Europeanization (Page, 2003: 175) and that it is
a pretty slow process, the effects are visible and observable in various administrative
fields, tempting European citizens to demand and expect even more, and in a much
faster manner. In parallel with top-down Europeanization, bottom-up Europeanization,
with citizens in the centre, has to be recognized (see also: Checkel, Katzenstein, 2009:
10).
Within the EAS, Europeanization of policy formulation is going parallel with
Europeanization of policy implementation. European integrated administration
(Hoffmann, Trk, 2009) is competent for the implementation of common and harmonized
EU public policies and EU acquis communautaire. European integrated administration is
structured as a network, with the Commission and the EU agencies (EU bureaucracy)
as the network nodes and with national public administrations as the main field force.
Apart from vertical line (EC EU agencies national administrations), there are multiple
horizontal networks of cooperation between national bodies and other actors in charge
1

There are Westminster or Anglo-Saxon, Weberian or German, Napoleonic or South European,

and Scandinavian or Nordic models of public administration in Europe. More in: Kopri et al., 2014: 40-45.

3
of information sharing, planning, coordination, regulation (independent regulators) and
implementation.

III.

Good Governance

Governance can be treated as a theoretical and as a doctrinal concept.2 Theoretically

speaking, for analytical purposes, it can be divided into two main, opposite types:
hierarchical, more vertically-oriented, and network, more horizontal type. Thus, on the
basis of extensive empirical literature research, Hill and Lynn concluded that shift
away from hierarchical government toward horizontal governing is less fundamental
than it is tactical: the addition of new tools or administrative technologies that facilitate
public governance within hierarchical systems (quoted in: Frederickson, 2005: 298).
Frederickson, also, urges that the concept of governance should be narrowed, because
it is imprecise, woolly, and, when applied, so broad that virtually any meaning can be
attached to it (Frederickson, 2005: 289). He identifies three types of governance as a
kind of public administration:3 inter-jurisdictional governance, third-party governance,
and public nongovernmental governance (2005: 294-295).4 At the end, he states that
public administration is the basis of policy implementation in government, and
government is an essential precondition of governance (2005: 299). In other words,
there is no governance without government (2005: 298).
Governance can be seen as a continuum with classic, hierarchical government at one
pole, and horizontal governance at the other. Such a continuum can show the degree of
governance development towards the horizontal pole, or, at best, a stage in the
departure from the vertical government type of managing public affairs.
Governance can be defined as a type of administrative doctrine, too. An administrative
doctrine is a system of ideas about desirable ways of operating and prescriptions about
good practices, grounded on dominant values and systematised experiences,
comprising standards with regard to organisation, functioning, regulation, management,
etc. in public administration. Administrative doctrines are themselves influenced by
social, economic, political, demographic, and other circumstances. The main pillars of
administrative doctrines are the dominant values.
Contemporary administrative development is characterised by two main and very
influential administrative doctrines the new public management (NPM) and good
2

For further information about theoretical debate on governance and its implications see: Bevir,
2007; Pierre, 2000, etc.
3
The critical point here is that instead of governance replacing public administration, governance
is a kind of public administration. Frederickson, 2005: 295
4
Inter-jurisdictional governance means inter-jurisdictional and inter-organizational cooperation
that is vertical and horizontal and relies on voluntary participation in certain specific policy area (the
examples are environmental inter-jurisdictional governance or national defence inter-jurisdictional
governance). Third-party governance extends the state or jurisdiction by contracts or grants to third
parties, including sub-governments (the first party is elected democratic legislative authority; the second
is executive administration or public administration). Public nongovernmental governance is characterised
by the substantive autonomy of actors outside government engaged in policy making representing the
interests or well-being of citizens. Frederickson, 2005: 294-295

4
governance. The United Nations (UN), the EU, OECD, the IMF, and the WB5 have
begun advocating good governance. The new doctrinal orientation emphasises the role
of citizens and civil society, transparency, legitimacy, responsibility, efficiency, human
and citizens rights, the rule of law, better quality of the public services, the
implementation of modern information-communication technologies, and better human
resources management. Citizens are seen as partners who significantly contribute to the
final results of public administrations activities. Citizens need to be informed and
consulted; they have to participate in the creation of public policies and in administrative
and other public processes (see for example: OECD, 2001).
Along with the strengthening of the institutional capacity, the doctrine of good
governance states that it is necessary to renew the democratic political legitimacy of the
modern countries. It also calls for the strengthening of the policy capacity in public
administration, i.e., of its ability to analyse and create public policies. It claims that good
results can be achieved through cooperation, consultation, and synchronisation between
citizens, local and central governments. Only well-balanced and widely accepted public
policies have chances to result in efficient economic and social development. Some will
say that good governance is a combination of democratic and effective governance
(UNDP, 2002: 1), while others would stress that good governance is transparent,
effective, participative, accountable, responsive and responsible (Fraser-Moleketi,
2009: 7).
Among the principles of good European governance, the EU emphasises openness,
participation, responsibility, effectiveness, and coherence (EC, 2001). However, other
principles of European governance have been codified in several documents of various
legal significance, from legally binding to less strict, policy, institutional and professional
documents. Good governance serves, in practical terms, as the benchmark for the
evaluation of administrative functioning in EU member states, as well as in candidate
countries. Codification and advocating of good European governance principle, legal
and administrative standards and best administrative practices have to be assigned in
particular to the European Ombudsman.

IV.

European Ombudsman and Good Administration

The 1992 Maastricht Treaty enabled the establishment of the European Ombudsman as
a new European Union institution, by means of Article 195(4) of the Treaty Establishing
the European Community and Article 107d(4) of the Treaty Establishing the European
Atomic Energy Community. The Ombudsman is regulated by the Decision of the
European Parliament on the Regulations and General Conditions Governing the
Performance of the Ombudsmans Duties (1994, amended in 2002 and 2008).
Ombudsman is appointed by the European Parliament and has the same seat and
duration of mandate as the European Parliament. The first ombudsman was Jacob
Sderman (from Finland; 1995-2003). The second was Nikiforos Diamandouros (from

As early as in 1991, the WB organized a conference devoted to good governance. McNutt, Pal,
2011: 442
5

5
Greece; 2003-2013). The current Ombudsman, Emily OReilly (from Ireland), took office
on 1st October 2013.
The Ombudsman shall perform his duties with complete independence, in the general
interest of the Communities and of the citizens of the Union. He may not be engaged in
any political or administrative duties, or any other occupation. In his personal status
(remuneration, allowances and pension), he is equal to the judges of the Court of
Justice. Only Court of Justice can dismiss him, at the request of the European
Parliament, if he not longer fulfils the conditions required for the performance of the
Ombudsman duties or if he is guilty of serious misconduct. He may resign from duty on
his own will, too.
The Ombudsman has secretariat with officials and servants. He appoints the principal
officer of the Secretariat. For more efficient and better performance, he can cooperate
with authorities of the same type in the member states, as well as with other member
states institutions and bodies in charge of the promotion and protection of fundamental
rights. The European Network of Ombudsmen, established in 1996, serves in that
regard.
The European Network of Ombudsmen consists of national and regional ombudsmen6
and similar bodies of the member states, candidate countries and of Iceland and
Norway, together with the European Ombudsman and the Committee on Petitions of the
European Parliament. There are almost a hundred offices in 35 European countries
linked to the Network. The Network adopted the Statement in 2007, wishing to make the
EU dimension of the work of ombudsmen better-known and to clarify the service they
provide to people who complain about matters within the scope of EU law. It is important
to note that national and regional ombudsmen deal with complaints against public
authorities of the member states, including those under the scope of EU law, while the
European Ombudsman is competent for complaints against the EU institutions.
The European Ombudsman carries out inquiries into maladministration in the functioning
of the Unions institutions, bodies, offices and agencies. The judicial role of the courts is
outside of the Ombudsmans competencies. Everyone can act as a complainant: he/she
should not be personally affected by the maladministration and should not have any
special interest in the case. Article 43 of the Charter of Fundamental Rights entitles any
citizen of the Union and any natural or legal person residing or having its registered
office in a member state to refer to the Ombudsman cases of maladministration in the
activities of the institutions, bodies or agencies of the Union, with the exception of the
European Court of Justice and the High Court acting in their judicial role. The
Ombudsman also conducts inquiries on his own initiative.
Establishment of a broad concept of maladministration, encompassing legality,
fundamental rights and principles of good administration, is considered as one of the
main achievements of the European Ombudsman. In the period 1993-2010, he had
processed more than 36,000 complaints and completed more than 3,800 inquiries into
possible maladministration cases.
Besides empowering citizens and increasing respect for their rights through investigating
maladministration cases, the Ombudsman aims at promoting administrative culture of
6

Regional ombudsmen are from Austria (2), Belgium (3), Germany (20), Italy (15), Spain (10),
Switzerland (5) and the United Kingdom (4).

6
service. For that purpose in 2012, he drafted and elaborated, five public service
principles for the EU civil service: Commitment to the EU and its citizens, Integrity,
Objectivity, Respect for others, and Transparency. Through these principles of good EU
civil service he aims to promote good administration, too.
The main instrument of establishing and promoting good administration and good
governance is the European Code of Good Administrative Behaviour. The Code was
drafted in 1999 by the Ombudsman himself, and adopted in 2001 by the European
Parliament. The Ombudsman Sderman in his presentation of the Code to the
Parliament accentuated, among other issues, the importance of good administration for
the democratic and legitimate governance (good governance). It is also interesting to
note that the Charter of Fundamental Rights with the right to good administration and
the right to refer to the Ombudsman was prepared and proclaimed almost
simultaneously, in 2000.7 Certain authors believe that the original role of the Code was
to further elaborate the meaning of the right to good administration stipulated in the first
version of the Charter (Mendes, 2009; Kanska, 2010; etc.) the same was stressed in
the foreword to the Code written by the second Ombudsman Diamandouros.
Be that as it may, it is obvious that the European Ombudsman, having a task to cope
with maladministration, concentrates on its positive side; on defining good
administration. This reflects his proactive attitude in that respect. In addition, he attempts
to raise the quality of EU administration and the quality of governance within the EU.
This was clearly stated in the Strategy of 2010: the Ombudsman aims to help the Union
to deliver on the promises it has made to citizens in the Treaty of Lisbon concerning
fundamental rights, enhanced transparency and greater opportunities for participation in
the Unions policy making. Although administration and governance are firmly
interconnected, (good) administration is more connected with the implementation and
(good) governance with the policy making.

V.

Maladministration and Good Administration as Defined by the Code of

Good Administrative Behaviour

Maladministration is opposite to good administration: it is the failure of a public body to

act in accordance with the binding rules and principles, i.e. normative expectations of
their relevant environment (citizens, businesses, etc.). The basic principle is the principle
of legality, accompanied by other principles and rules developed predominantly in the
Code of Good Administrative Behaviour. The Code encompasses 27 articles. Majority of
them (24) are stipulating various principles of good administration.
Lawfulness (Article 4) says that the official shall act according to law and apply the rules
and procedures laid down in EU legislation. Decisions which affect the rights or interests
of individuals shall have a basis in law and their content shall comply with the law.

st

Charter of Fundamental Rights entered into force along with the Lisbon Treaty, on 1 December
2009. In this context, Articles 41 on the right to good administration, 42 on the right to access to
documents, 43 on the Ombudsman and 44 on the right to petition are especially important. More in: Kopri
et al., 2011.

7
Equality and non-discrimination has been stipulated in Article 5. Citizens and other
subjects that are in the same situation shall be treated in a similar manner. Differences
in treatment have to be justified by the objective relevant features of the particular case.
Any unjustified discrimination shall be avoided.8
Proportionality is one of the basic principles in the Code, stipulated in Article 6.
Measures taken by a decision shall be proportional to the aim pursued. Restrictions of
the rights and charges imposed on the citizens and other subjects have to be in a
reasonable relation with the purpose of the action pursued. The balance between the
interests of private persons and the general public interest has to be respected when
taking decisions.
Abuse of power is prohibited by the Code (Article 7). In parallel, the officials shall be
impartial and independent: they shall abstain from any arbitrary action adversely
affecting members of the public, as well as from any preferential treatment on any
grounds. Their conduct shall never be guided by personal, family, or national interest or
by political pressure. The official shall not take a part in a decision in which he or she, or
any close member of his or her family, has a financial interest (Article 8). The official
shall act not only impartially, but fairly and reasonably as well (Article 11).
Courtesy and correctness are important characteristics of the officials (Article 12). The
Code stipulates that an official shall be service-minded, correct, courteous, accessible,
and helpful. He or she shall reply as completely and accurately as possible to questions
or direct the citizen to the appropriate official. In a case of error which negatively affect
the rights or interests of a citizen, the official shall apologise, expediently correct the
negative effects, and inform the citizen about right of appeal.
The official shall reply in the same language in which a citizen sent his or her letter,
which shall be applied as far as possible to legal persons (NGOs and companies), too
(Article 13). Every letter of complaint shall receive an acknowledgement of receipt within
two weeks, except if a substantive reply can be sent within that period, or if letters or
complaints are abusive (because of their excessive number or because of their
repetitive or pointless character). The acknowledgement or reply shall contain
information about the responsible official (name and telephone number) and about the
service to which the responsible official belongs (Article 14). If a letter or complaint is
addressed to a body which is not competent, it has to be transferred to the competent
service or institution without delay. Sender of the letter or complaint has to be informed
about this transfer and the name and telephone number of the responsible official.
Sender has to be warned about errors or omissions in documents sent and has to have
an opportunity to rectify them (Article 15).
The officials shall be consistent in their administrative behaviour, following the
institutions normal administrative practices, unless there are legitimate grounds for
departing from them in an individual case. Where such grounds exist, they shall be
recorded in writing. Uniform administrative practice results in the development of
legitimate and reasonable expectations of public, which have to be respected by officials
(Article 10).

The Code mentions possible discrimination bases: nationality, sex, race, colour, ethnic or social
origin, genetic features, language, religion or belief, political or any other opinion, membership of a
national minority, property, birth, disability, age, or sexual orientation.

8
Decisions have to be objective, based on relevant factors and their importance for a
decision (Article 9). Decisions have to be made within a reasonable time-limit, without
delay, and in any case no later than two months from the date of receipt. Only
complexity of the matters can cause prolongation. In such a case, the official shall
inform the interested citizen about the postponement, solve the case and communicate
a decision in the shortest possible time (Article 17).
The relevant facts and the legal basis shall be stated as the grounds for the decision
which may affect the rights of interests of a private person. The official shall avoid
making decisions which are based on brief or vague grounds, or which do not contain an
individual reasoning. Individual reasoning can be obtained also in the similar cases with
similar decisions in which standard replies are sent, if the citizen expressly requests it
(Article 18, duty to state the grounds of decisions). At every stage in the decision-making
procedure, the official shall ensure that the rights of defence are respected, because
individuals have the right to be heard. Also, individuals have the right to make
statements in written form (comments) and, when needed, in oral form (oral
observations) before the decision is taken (Article 16, right to be heard and to make
statements).
Every decision shall contain an indication of appeal possibilities including information
about the nature of the remedies, the appeal bodies and the time-limits for lodging them.
Decisions shall in particular refer to the possibility of judicial proceedings and complaints
to the Ombudsman (Article 19). Decisions have to be notified to the persons whose
rights or interests are affected in writing (Article 20).
Personal data shall be protected by respecting the privacy in accordance with the
relevant EU regulations. The official shall avoid processing personal data for nonlegitimate purposes or the transmission of such data to non-authorised persons (Article
21).
In parallel, citizens have the right to get clear and understandable information from
responsible official. When appropriate, the official shall give advice on how to initiate an
administrative procedure within his or her field of competence. Demands for information
can be submitted orally or in writing. Information of confidential nature cannot be
communicated: instead, the reasons why it cannot be communicated shall be indicated
(Article 22). Furthermore, citizens may submit a request for public access to documents
in accordance with relevant EU regulations (Article 23).
Each institutions department shall keep adequate records on their incoming and
outgoing mail, of the documents received, and of the measures taken (Article 24).
The institution shall take effective measures to inform citizens of the rights ensured by
the Code, which includes publication of the Code in electronic form on its website. The
European Commission shall publish and distribute the Code to citizens in the form of
brochure on behalf of all institutions (Article 25).
Citizens have the right to complain to the European Ombudsman in each case when any
failure of an institution or official to comply with the principles set out in the Code occurs
(Article 26). Each institution shall review its own implementation of the Code after two
years of operation and shall inform the Ombudsman on the results of its review (Article
27).
All the principles from the Code can be systematised into three large groups:

9
a) general principles of administrative law and public administration: lawfulness
(Article 4), non-discrimination (Article 5), proportionality (Article 6), absence of
abuse of power (Article 7), impartiality and impendence (Article 8), data protection
(Article 21), access to information and documents (Articles 22 and 23), and right
to complain to the Ombudsman (Article 26);
b) principles of administrative procedure and administrative functioning in general:
objectivity (Article 9), legitimate expectations and consistency (Article 10),
fairness of treatment (Article 11), right to use the language of the citizen (Article
13), acknowledgement of receipt and indication of the competent official (Article
14), obligation to transfer to the competent service of the institution (Article 15),
right to be heard and to make statements (Article 16), reasonable time-limit for
decision-making (Article 17), duty to state grounds of decision (Article 18),
indication of the possibility of appeal (Article 19), and notification of the decision
(Article 20);9
c) service ethics standards: courtesy (Article 12), keeping records on activities and
correspondence (Article 24), the need for publicity of the Code (Article 25), and
duty to review operation (Article 27).
Possible maladministration encompasses various cases, such as late payment for EU
projects, publishing inaccurate information, failure to reply to a letter, unjustified refusal
to give out a document, inadequate record keeping, inadequate consultation, broken
promises, etc.
It is important to recognize that the Code connected with the right to good administration
from the Charter of Fundamental Rights forms a system of basic principles establishing
pillars of good administration and good governance. It is applicable to both policy
making and to the frame of policy and EU law implementation. It is applicable to issuing
individual decisions and to adopting general acts. The Code stipulates procedural and
substantive rights of citizens. It covers all phases and all situations in the functioning of
the EU institutions, bodies and agencies. Moreover, it covers situations when national
authorities serve as the parts of so-called European integrated administration. Its
influence is general, wide and strong. It is primarily a benchmark and an ethical code.
However, since it is elaborating the right to good administration from the Charter, it gets
binding effects, too (see also Mendes, 2009). The Code stands as a template for any
other administration, has symbolic meaning and can inspire other institutions, bodies
and public administrations, including national.
The persistent work of the European Ombudsman and of the Parliament resulted in the
effort to prepare the first European Law of Administrative Procedure (compare also
Craig, 2013). On 15th January 2013, the European Parliament adopted the Resolution
2012/2024(INL) with recommendations to the Commission on a Law of Administrative
Procedures of the European Union. Integrative and harmonizing effects of such a legal
document are clearly stated in the Resolution: it stresses that the Law could strengthen
a spontaneous convergence of national administrative law and thus strengthen the
process of integration, and could foster cooperation and exchange of best practices
between national administrations and the Unions administration.

Some of them are now included in the Charter of Fundamental Rights.

10
The following principles are listed as the main pillars of the new Law: lawfulness, nondiscrimination and equal treatment, proportionality, impartiality, consistency and
legitimate expectations, respect for privacy, fairness, transparency, and efficiency and
service. The proposed Law is under scrutiny and preparation of the European
Commission.

VI.

Conclusion

The EAS as the space with approximately equal level and quality of administrative and
public services for all European citizens and other people has been developing on the
ideas and values of good governance and is firmly grounded on the concept of good
European integrated administration. Judicial protection of citizens rights before
European courts is part of the concept, too. Case law, generated by the European Court
of Justice and the European Court of Human Rights, offers and strengthens several
basic procedural standards such as equality of arms, right to be heard, proportionality,
reasonable time frame for solving the cases, etc. Both elements, good administration
and judicial protection, are parts of the complex system of legal protection of citizens
and other subjects from maladministration.
Maladministration includes various examples of citizens rights violations and harmful
actions of European institutions, bodies and agencies as well as similar violations and
actions of national public administrations when they act as the parts of the European
integrated administration. However, through activities aimed at sharing best practices,
benchmarking, implementation of conditionality policy and other instruments and
channels, the idea of harmonizing prevention and healing maladministration is getting
more and more support throughout Europe.
Proactive activity, efforts and enthusiasm of the European Ombudsman who has worked
on identification, codification and development of citizens rights with regard to European
institutions and administration has resulted in adoption of the Code of Good
Administrative Behaviour, inclusion of the right to good administration into the Charter of
Fundamental Rights, necessary improvements in relevant stipulations of the Lisbon
Treaty, and preparation of the first European Law of Administrative Procedure.
Croatia has tried to acquire the European standards and to function within the European
Administrative Space (more in: Kopri, 2014). Predominant approach is normative,
legalistic and bureaucratic. In spite of that, certain simplification of administrative
procedure, introduction of two-tier administrative justice, acknowledgement of other
European legal standards including those from the Charter of Fundamental Rights and
many other adjustments have been made. However, efforts of the European
Ombudsman, standards of the Code of Good Administrative Behaviour and preparation
of the European Law of Administrative Procedure have not attracted enough attention of
the scientific and professional community so far.
Croatia is responsible not only to its own citizens, but also to the European citizens,
member states and the EU itself for the implementation of EU law and for ensuring the
same legal environment for undisturbed mobility of capital, goods, services and people.
Croatian legal and administrative tradition accompanied with adjustments during the

11
Europeanization phase ensures many standards from the Code of Good Administrative
Behaviour, in formal sense. However, much is to be done in administrative practice.

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